CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK, IN JANUARY TERM, IN THE YEAR 1799. SETON, MAITLAND & Co. against Low. In an action on a policy of insurance, from New York to the Havana on "all kinds of lawful goods laden," &c. it was held, that articles contraband of war, were lawful goods, within the meaning of the policy; that goods not prohibited by the positive law of the country to which the vessel belongs, are lawful; and that the insured are not bound to disclose to the insurer, that the goods insured are contraband of war. (a) Benson, J. dissented. A neutral nation is under no moral obligation to abandon or abridge its trade, in consequence of war between two others—yet a belligerent may seize and confiscate contraband goods upon the principle of self-defence. Per Kent, J. It is a general and a just principle that every fact in the knowledge of the assured which enhances the ordinary risk and which would if disclosed enhance the premium, ought to be communicated to the underwriters. But the principle is limited to circumstances which the underwriter is not presumed to know nor bound know. Per Kent, J. THIS was an action on an open policy of insurance, dated the 3d of May, 1797, upon "all kinds of lawful goods and merchandizes," on board the brig Hannah, from New York to the Havana. The sum of 16,000 dollars was subscribed by the defendant, as President of the United Insurance Company, at a premium of eight per cent. The insurance was averred to have been made for the benefit (a) Skidmore & Skidmore v. Desdoity, infra, vol. 2, p. 77. Juhel v. Rhinelander, id. 120. S. C. in error, id. 487. Seton & Co. v. Low. of Manuel Galbore De Silva, and the loss stated to have been by capture, by his Britannic Majesty's sloop of war the Swallow. The action was tried before Mr. Justice Hobart, at the circuit, held in the city of New York, when a verdict was found for the plaintiffs, for the sum of 15,405 dol[*2] lars, *subject to the opinion of the court, on the following case. The plaintiffs, on the 2d day of May, 1797, wrote to the company, whereof the defendant was president, the following note: "The company will please to effect insurance on the brig Hannah, W. R. M'Colley, master, from New York to the Havana, viz. 4000 dollars on the vessel out and home, valued at the sum of and 16,000 dollars on the cargo, not warranted, but shipped by and in the name of their obedient humble servants, Seton, Maitland & Co." On receiving this order, the policy was effected, for the sum and at the premium therein mentioned. No disclosure was made to the company, at the time of obtaining the insurance, of the nature of the cargo, nor who was the owner, nor were any questions asked by the insurers on those points. The plaintiffs and defendant resided in New York. One of the plaintiffs, William M. Seton, was a member of the company. On the 17th of March, 1797, the governor of the Havana, by proclamation, permitted the following articles to be imported into that place, in American vessels, of which description was the Hannah, namely, all kinds of eatables, (except cod fish and flour,) Britannias, Creas, ticklenberghs, platillas, Russia duck, checks, twine, nails and cordage. The plaintiffs, pursuant to the above mentioned proclamation, obtained a written permission from the consul of his Catholic Majesty for the state of New York, signed the 5th of May, 1797, for the captain of the said brig to proceed from New York to the Havana, with her cargo, and the permit enumerated every article of which the cargo consised. The cargo of the Hannah belonged to the said Manuel Galbore de Silva, a Spanish subject, and consisted of the following articles: viz. Britannias, Silesia, Seton & Co. v. Low. Creas, ravens duck, ticklenberghs, platillas, Russia duck, Russia sheeting, cordage, ratlines, checks and twine. The Hannah was captured, and carried into New Providence, where the cargo was libelled, and a decree *pro- [*3] nounced by the court of the vice admiralty, "condemning, as lawful prize, the ravens duck, ticklenberghs, Russia duck, cordage, ratlines and twine, as being shipped by the plaintiffs, citizens of the United States, contrary to their neutrality, and the treaty of amity, commerce and navigation, between Great Britain and the United States, and as being articles contraband of war, and such as may serve for the equipment of vessels, and as by the said treaty are declared to be just objects of confiscation, whenever attempted to be carried to an enemy." And with respect to the remaining cargo on board, the judge of the said court decreed as follows: "From the peculiarity of the marks, the initial letters of the consignee and of Manuel Galbore de Silva, a Spanish passenger on board the said vessel, who was lost overboard, and more especially from the direct contradiction in the examinations, on oath, of William Reynolds, M'Colley, the master, and John Millholland, the mate of the said brigantine, the former declaring that, to the best of his knowledge, they belong to Messrs. Seton & Maitland, merchants in New York, and citizens of the United States of America, that he believes the said cargo did, at the time of shipping, and will, if landed in the Havana, become their property, and that the said passenger had no concern or property whatever in the said vessel and cargo, and the latter, as positively declaring, that he imagines the whole cargo belonged to the said Spanish passenger, a partner of the said consignee, as he had been informed by the said master, and which opinion is supported by Messrs. Maitland, Howell & Co. ship chandlers, coming on board the said vessel, to get pay for some outlandish cordage, sold to the said passenger by them, and on which he had received the drawback, and that he believes the said goods, if landed in the Havana, would really belong to, and become the property of the said passenger and consignee; wherefore, I am doubtful who are the real, true and absolute owners of the said last mentioned Seton & Co. v. Low. goods; I do, therefore, further decree, that one hun[*4] dred days from the date hereof (which was the 7th of July, 1797) be allowed the said Seton, Maitland & Co. to prove their real, true and absolute property in the aforesaid goods, last enumerated, to the satisfaction of this court; and that on the claimant giving good and sufficient security for the appraised value of the said goods, and to abide the final decree of the said court, respecting the said goods, the same to be delivered up to the said claimant ; and, lastly, I condemn the claimant in the costs occasioned by the interposition of his claim." The plaintiffs, on receiving intelligence of the capture and proceedings above mentioned, or shortly thereafter, to wit, on the 22d day of August last, abandoned to the company, the cargo, and delivered to them the usual proofs of interest and loss. It was admitted that the articles which were condemned as contraband of war, were the cause of the capture and detention. The whole property on board, including commissions and premiums of insurance, amounted to 15,388 dollars and 88 cents. It was also admitted, that ticklenberghs do not usually serve for the equipment of vessels, although, from necessity, sails are sometimes made of them. The points which were stated in the case by the counsel, were as follows: 1. Whether the plaintiffs were entitled to recover for a total loss? If the court should be of that opinion, judgment should be entered on the verdict, as it stood. 2. Whether the plaintiffs were entitled to recover only for the goods which were not condemned as contraband of war, and under this head, whether the ticklenberghs were properly condemned as such? If the court should be of opinion, that the plaintiffs were entitled to recover for the articles last mentioned, and also for the ticklenberghs, as not being contraband, and being improperly condemned as such, then a verdict should be entered for the sum of 8497 dollars, and six cents costs, and judgment accordingly. But if the court should be of opinion, that the ticklenberghs were justly condemned as contraband of war, and that the plain Seton & Co. v. Low. [*5] tiffs were entitled to recover only for the articles which were not condemned as such, then the verdict was to be entered for the sum of 6804 dollars, and six cents costs, and judgment accordingly. 3. If the court should be of opinion, that the plaintiffs were not entitled to recover any part of the sum insured, that then the judgment should be entered for the defendant. KENT, J. Two questions were raised, on the argument in this case. 1. Whether the contraband goods were lawful, within the meaning of the policy. 2. If lawful, whether the assured were bound to disclose to the defendant the fact, that part of the cargo was contraband of war. On the first point, I am of opinion, that the contraband goods were lawful goods, and that whatever is not prohibited to be exported, by the positive law of the country, is lawful. It may be said, that the law of nations is part of the municipal law of the land, and that by that law, (and which, so far as it concerns the present question, is expressly incorporated into our treaty of commerce with Great Britain,) contraband trade is prohibited to neutrals, and, consequently, unlawful. This reasoning is not destitute of force, but the fact is, that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the belligerent powers; and this it does from necessity. A neutral nation has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade; and yet, at the same time, from the law of necessity, as Vattel observes, the powers at war have a right to seize and confiscate the contraband goods, and this they may do from the principle of self-defence. The right of the hostile power to seize, this same very moral and correct writer continues to observe, does not destroy the right of the neutral to transport. They are rights which may, at times, reciprocally clash and injure each other. But this collision is the effect of inevitable necessity, and the neutral has no just cause to complain. A trade by a neutral, in articles contraband of |